THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NUMBER: J484/99
In the matter between:
A & A ENGINEERING (PTY) Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Respondent
JUDGMENT
MARCUS AJ:
I. This is an application for the review of an arbitration
award in terms of section 145 of the Labour Relations Act 66 of
1995 (“the Act”).
II. On 18 November 1998, the second respondent handed down an
arbitration award in terms of which he held that the dismissal
of the third respondent was procedurally and substantively
unfair. The award gives relief in the form of compensation for
six months wages.
III. There are a wide variety of attacks on the award. The
review is not opposed by the third respondent. The third
respondent is in fact in court today and has indicated to me
that he does not oppose the relief claimed. There is no
answering affidavit by the second respondent who has contented
himself simply with furnishing a transcript of the proceedings
before him. The applicant's averments therefore stand
unchallenged. I mention only the more significant attacks. For
ease of reference, however, the arbitration award forms an
annexure to this judgment.
IV. Under the heading "ISSUES TO BE DECIDED" the second
respondent stated:
"I am requested to decide allegations made by an employee that
whilst still in employment of the Company he was ordered to stop
performing his duties as a fitting turner."
The founding affidavit states that the employee's contention
was that he was constructively dismissed. It is further stated,
however, that it became common cause that the employee was
unable to work due to ill health. The issues to be decided were
in fact whether the employee was dismissed or whether he
resigned and, if dismissed, whether such dismissal was fair. The
second respondent thus entirely misconceived the very issue he
was called upon to decide.
V. The applicant states further in the founding affidavit that
under the same heading in the arbitration award, it is stated
that:
"The Company later dismissed him (the third respondent)
unfairly. I must decide whether the alleged dismissal was
unfair."
The applicant states, however, that the true issue was whether
there was a dismissal and if so, whether the dismissal was fair
or unfair. The statement by the second respondent, however,
indicates that the issue of dismissal itself was common cause
while the only issue to be decided was the fairness thereof. As
the applicant rightly points out, the implications of this error
in respect of the onus are substantial. This too indicates a
basic misconception of the issues to be decided.
VI. Under the heading "SUBMISSION OF EMPLOYEE" the second
respondent stated:
"On 16 September 1997 he (the third respondent) was instructed
to stop discharging his duties."
The applicant states that while this was said by the third
respondent, it was common cause that he could not discharge his
duties due to his permanent disability. Consequently, says the
applicant, the issue of suspension never arose. Again, I
emphasize, there is no answer to this averment.
VII. Also under the heading "SUBMISSION OF EMPLOYEE" in the
arbitration award, it is stated:
"In the disciplinary enquiry which was held on this particular
date the employee was terminated." (sic)
The applicant states that it was not the submission of the
third respondent nor of the applicant that the latter’s
employment was terminated at the disciplinary enquiry. The
applicant states that no enquiry was actually held as the
meeting was adjourned without reaching a conclusion after the
third respondent had failed to attend. The applicant submits
that this error was highly prejudicial to it. It indicates a
failure to understand the issues in dispute.
VIII. Under the same heading, namely, "SUBMISSION OF THE
EMPLOYEE" the second respondent stated:
"In June 1998 the employee was formally served with a notice
which confirmed the dismissal."
The applicant submits, however, that neither the third
respondent nor the applicant made any submission in respect of a
notice confirming dismissal. The applicant states that there
was never such a notice. This demonstrates a failure to
appreciate the evidence that was presented.
IX. In the founding affidavit reference is made to that part of
the arbitration award under the heading "SUBMISSION OF EMPLOYER"
where the second respondent stated:
"In their opening statement the Company stated that as they
did not have any position internally as the employee requested
to be shifted to an alternative position."
The applicant states that no such submission was made. What
was stated is that when the idea of an alternative position was
mooted, the third respondent indicated that he was not
interested . The reason for this, according to the applicant,
was that the third respondent was not prepared to accept a
reduction in his salary. The applicant contends that this
error, like the others, was highly prejudicial to it. It
demonstrates a lack of appreciation of the issues to be
determined and a misunderstanding of the evidence presented.
X. The applicant also draws attention to that part of the
arbitration award under the heading "SUBMISSION OF EMPLOYER" in
which it was stated:
"The employee failed to attend the disciplinary hearing."
The applicant points out that at no point did the applicant
ever allege or submit that the third respondent was required to
attend and failed to attend a disciplinary hearing.
XI. There are many other attacks launched by the applicant.
Where an arbitration award is taken on review, the arbitrator
has a choice either to abide the decision of the court or
actively to oppose the relief claimed. It is also permissible
for the arbitrator to file an affidavit setting out facts which
he or she considers may be of assistance to the court (See
Hyperchemicals International (Pty) Ltd and another v Maybaher
Agrichem (Pty) Ltd and another 1992 (1) SA 89 (W) at 92 A E).
A court of review is not bound by the record of proceedings
which are the subject of review ( Johannesburg Consolidated
Investment Co v Johannesburg Town Council 1903 T.S 111 at 114
115; Rose Innes Judicial Review of Administrative Tribunals in
South Africa (1963) at 1517). Were it otherwise, an applicant
for review might encounter difficulties in establishing a
reviewable irregularity. As a result of the attacks set out in
the founding affidavit, to which there has been no answer, it is
submitted by the applicant that the award is reviewable on the
basis of a number of gross irregularities. The defects relied
upon are, inter alia ,that the second respondent failed to listen
to the parties; and as a result of such failure, the second
respondent failed to understand both parties' cases.
XII. In the present case, the applicant has made out a
formidable attack on the arbitration award. Some of these
attacks strike at the very basis of the ultimate findings by the
arbitrator and the manner in which the conclusions were reached.
The arbitrator could have responded to these attacks, as could
the third respondent. Both have elected not to do so.
I.
XIII. It is now settled by the Labour Appeal Court that
arbitration awards fall to be reviewed under section 145 of the
Act. (See Carephone (Pty) Ltd v Marcus NO & Others , (1998) 19
ILJ,1425 (LAC)). The nature of the attacks launched by the
applicant suggest, in my view, that not only did the arbitrator
fail to understand the evidence but that he positively
misconstrued such evidence as was led before him. In such
circumstances it seems to me that the applicant was simply not
afforded a proper hearing.
XIV. In dealing with the failure by a person vested with a
discretion to apply his mind to the matter, Colman J in
Northwest Townships Ltd v The Administrator, Transvaal &
Another, 1975 (4) SA 1(T) observed at 8G:
"The last mentioned possibility has been held in other English
and South African cases to include capriciousness, a failure on
the part of the person enjoined to make the decision to
appreciate the nature and limits of the discretion to be
exercised, a failure to direct his thoughts to the relevant data
or the relevant principles, reliance on irrelevant
considerations, an arbitrary approach and an application of
wrong principles."
(See also Johannesburg Stock Exchange & Another v Witwatersrand
Nigel Ltd & Another , 1988 (3) SA 132(A); During NO v Boesak &
Another, 1990 (3) SA 661(A) at 671I 672D; Jacobs & 'n Ander v
Waks & Andere , 1992 (1) SA 521(A) at 550H551C.)
XV. I have little doubt that having regard to the seriousness
of the attacks made by the applicant, that a number of gross
irregularities occurred in the proceedings.
I accordingly make the following order:
1. The arbitration award made by the second respondent acting
in his capacity as a commissioner of the third respondent on 18
November 1998 under case number GA35071 is reviewed and set
aside;
2. The dispute between the applicant and the third respondent
is referred back to the first respondent for arbitration by a
commissioner other than the second respondent;
3. I make no order as to costs.
__________________
G J MARCUS
ACTING JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
DATE OF HEARING: 4 JUNE 1999
DATE OF JUDGMENT: 4 JUNE 1999
For the applicant: Mr H Ebersohn of NICHOLETTS ATTORNEYS